Friday, September 15, 2006

Aharon Barak: An Activist Judge Par Excellance

So says Larry Derfner in yesterday's Jpost. In Derfner's eyes a judge with a Jewish impulse (which is basically synonymous with a liberal impulse) will extend democracy to protect insecure minorities. This argument presumes that the function of the judge in a democracy is to afford democracy to the minorities who would be swallowed up by the majority if left to their own devices.

Now if any of you have read my last post, you'll know that I don't oppose judicial review per se. In fact, I cannot deny that the contramajoriatarian difficulty is illusory because the judge is empowered to overturn the will of the majority if they violate the compact they consented to make the supreme law of the land. The difficulty only adheres when the judge exceeds his power and nullifies legislative action without constitutional support.

Barak, who is a brilliant legal jurist by any measure, argues that democracy is more than simply the will of the majority and contains substantive elements such as (among others) the rule of law, separation of powers, and human rights. The goal of the judge is to balance the procedural element (majority rule) with the substantive elements (human rights). These elements are fundamental and not subject to opinion polls.

I don't need to explain my problems with the above argument. I might agree that democracy is substantive in nature, but I firmly disagree with the proposition that unelected judges are better equipped to determine fundamental rights than anyone else. On what basis should the judge decide that the substantive outweigh the procedural violations?

My biggest problem with Israel's "constitutional" order is the lack of judicial power to overturn laws in the first place. Barak acknowledges that Israel lacks a formal constitution, but proffers the existence of an immutable, unwritten constitution embedded in the Basic Laws. Barak claims that when the Basic Laws are contradicted by ordinary legislation, the legislation is void.

Barak envisions similarities to our system, where the Constitution reigns supreme (even more to the point he extrapolates the inference in Marbury that created judicial review in the US to the situation in Israel). But there's a piece missing: even if we assume that basic laws are extra-legislative (a weak proposition), on what basis can the courts overturn laws? Not every country with a democracy has judicial review. For example Switzerland's courts lack judicial review, and the Swiss don't seem to have fallen prey to despotism. For judicial review to exist, the Basic Laws must be supreme and courts must be authorized to enforce its superiority.

But Derfner would want Barak's successor to continue in this tradition. While I am all for protecting minority rights from the tyranny of the majority, I am unaware of how a judge's discretion could be cabined absent a written constitution. The fact that Barak could impute legal superiority in the Basic Laws and then infer from that superiority that judges could enforce the laws over ordinary legislation shows the extent of the exceptional jurist's creativity. But creativity is a double-edged sword. It could be used to justify anything. How can we protect the majority from the tyranny of the minority?

As an aside, Derfner is just plain wrong on some points. For example he notes that "[i]f not for the US Supreme Court, blacks in the South might still not be able to vote. " This statement is patently wrong. The right to vote without distinction of the basis of color was guaranteed by the 15th and 24th Amendments of the Constitution and by the congressional legislation such as the Voting Rights Act of 1965. The courts had little to do with it.

I also find it amazing that Derfner neglects to mention a great Jewish justice who did not participate in the "Jewish tradition" of neglecting the will of the majority: Felix Frankfurter. Frankfurter is considered one of the most conservative justices of the 20th century because he consistently deferred to the elected branches on policy issues. Did Frankfurter fall outside of this tradition, or is it possible that the Jewish approach to judging is not as monolithic as Derfer would have us believe?